Skip to main content
Diana Lucia Martinez

Diana Martinez’s Answers

536 total

  • Can I get quick divorce. How can I sign house/mortgage over and req him to pay. Am I going to be req to suport him

    I've been married since 2008. Looking for divorce. Been separated since July 2015. Everything is in my name and I've been supporting him since we first met in 2006. He refuses to work and support himself. The mortgage is in my name but I don't wa...

    Diana’s Answer

    The fastest way to resolve a divorce is by reaching agreements. Unfortunately, emotionally and often financially, this can be difficult. If he's going to want spousal support (and if you were the higher income earner, this is, legally, a likely outcome), unless you are willing and able to pay it, you will, most likely, have a prolonged court battle. As my colleague stated, if he has the ability to earn, the court can "impute" an income to him (pretend he is earning a certain amount, either based on prior earnings, a vocational evaluation, or minimum wage). There is a computer formula that you can use (available at most law libraries) called "Dissomaster" or "ExSpouse". These programs will give you the "temporary" spousal support amount, that which is often ordered during the divorce process. This amount tends to be higher than the "permanent" spousal support, which is the amount ordered at the end of your case (does not mean it is forever fixed). The permanent tends to be less than the temporary. For guidance on the permanent, you can research online California Family Code Section 4320. These are the factors the court MUST consider when making that order at the end of your case.

    As it relates to the house, if you are not able to reach an agreement, the default will be the sale of the house. If the house is solely in your name, the following questions must be answered in determining who gets what from the house: was it purchased before marriage and, if so, were any payments made during marriage using income earned during marriage (before date of separation); were any payments made from income earned after date of separation; if it was purchased during marriage, was title transferred to only one spouse and, if so, was there any undue influence or fraud in securing that transfer? There are other questions, but determining community and separate property may create an obstacle to a fast resolution. Finally, as it relates to the house, transferring title is easy - you can sign the house over to him without any difficulties as long as he agrees. The hard part is transferring the mortgage. A lender will not simply relieve a debtor because s/he is getting divorced. The credit was provided to you based on your income and credit history. If your spouse has no income and/or poor credit history, odds are, the lender will not qualify him for a new loan - yes, NEW LOAN. The only way to remove your name from the mortgage is to pay off the mortgage in full (possibly through a sale), or refinance the house under someone else's name - they must qualify for the refi.

    The fastest you can be divorced (legally single) is 6 months and 1 day from the date the responding party is properly served with the petition documents. But you can have a signed, and binding, divorce judgment covering spousal support, division of asset, and division of debts well before then (you're just still married until the 6 month period is up - the court puts this date on your judgment documents). The fastest way to resolve all issues tends to be when the parties agree. In Riverside County, average time to trial is 10 months to 1.5 years, depending on the level of conflict/cooperation between the spouses. It can go for longer if the case is highly contested by one or both spouses. You may want to consider mediation or a collaborative divorce process. These tend to be faster and less expensive.

    There is a Divorce Options workshop coming up on January 28th at Orange Coast College in Costa Mesa. You may want to look into it for more information on contested and uncontested divorces. You may also want to consult with a lawyer who is knowledgeable in these processes; Most offer free initial consultations.

    I hope this information is helpful to you. Good luck.

    See question 
  • Married in Mexico want divorce live in California

    I got married in Mexico a year ago, he is a mexican citizen. We were together for less than a month. How do I go about divorcing.

    Diana’s Answer

    As my colleagues have said, you must meet the requirements to file in LA county (6 months in the state of California, and 3 months in the county in which you reside). If you are able to reach agreements with your spouse, you may qualify for a summary dissolution, but there are some very strict requirements to so qualify. Do an online search and you will find all of the requirements. If you do not qualify, you are still better off reaching agreements together as this will be a far less expensive way to divorce. If you cannot reach agreements together, you may want to consider mediation or collaborative divorce as the next best alternative. If there are serious legal issues, such as physical abuse, hiding or selling off of assets, or the like, you may be faced with a contested matter in court (which tends to be the most expensive option). Given that you were married for one year, there may not be much to fight over. But, battles can result when, emotionally, one of the spouses is not ready for the divorce, or if one spouse is holding out for, say, his greencard. There may be other complexities of which we are not aware. I would encourage you to speak with a lawyer (many do not charge for the first consult) to get a better idea of what process would best meet your needs, and what you can realistically expect moving forward.

    I hope this information is helpful. Good luck.

    See question 
  • What does "date of service of summons/petition" mean?

    filing a judgement packet to finalize my divorce

    Diana’s Answer

    It is the date the Respondent was served with the initial divorce papers. The legal impact of this date is it starts the 6 month + 1 day period: the earliest date by which you can be legally single again, assuming you have completed your divorce within that time frame (judgment for divorce signed by the judge).

    I hope this information is helpful to you.

    See question 
  • What are my legal options when it comes to my situation?

    My husband and I have been together about 24 years and married for 16. He has not worked in almost 8 years. He is verbally abusive to our 17 year old daughter at times and has no communication skills whatsoever. He literally lays in bed and watche...

    Diana’s Answer

    Mr. Waller's information is extremely sound. The worst thing you can do right now is act out of anger. If he has no desire to work WITH you in the marriage, he may not want to work WITH you in the counseling. But you do need to get yourself to a point, emotionally, that allows you to think very clearly as to the best next steps.

    As it relates to a divorce or separation, I would encourage you to attend one of any number of informative workshops on the topic. I understand it is a long drive for you, but there will be one such workshop in Costa Mesa at Orange Coast College on Thursday, January 28th. You can do an online search for Divorce Options and see if there is a workshop near you. These workshops are given statewide, and the speakers volunteer their time, are not "selling" their services, but rather, are providing general information so that people facing the challenges such as yours have a better, and more realistic, understanding of what to expect. The presenters are teams of one family law lawyer, one mental health professional and/or child specialist, and one financial professional, all of whom practice in family law and are trained in mediation, litigation, and collaborative practice.

    As it relates to the spousal support, yes, as the higher income earner, the court may order you to pay him spousal support. However, I encourage you to look at Family Code Section 4320 (you can find it online). These are the factors the court must consider when making the orders at the end of your divorce process. His ability to earn may be a question the alleviates the support burning you experience. If he has the ability, the court can order a vocational evaluation to determine what his income could be. The court can, as my colleague explained, impute (pretend he is earning) at least minimum wage. So all is not lost.

    There are legal implications of delaying the start of the divorce/separation process (I'm not trying to encourage you to start right away, just letting you know some of the concerns) in that you do not yet have a date of separation. This is a legal term that is often used to stop further community assets/debts. For example, if you receive a bonus from work performed after date of separation, it's all yours (separate property); if you earned it before date of separation, he gets half (community property. Debts incurred before date of separation are community, debts incurred after date of separation are separate.

    Again, I encourage you to see if he would be willing to participate in marital counseling, if that is something you also want. Short of that, a Divorce Options workshop may be very helpful, and certainly speaking directly with a lawyer will provide further education and guidance.

    I hope this is helpful to you. Good luck.

    See question 
  • Can I request spousal support when filing for marriage annulment?

    Hello, I'm getting ready to file annulment based on my spouse's bigamy. not only he lied to me about previous marriage(not being divorced), also stole money from me. as far as I know, he has no assets, no job but gets social security support month...

    Diana’s Answer

    Yes, you can make the request. An order for support, however, is not based on either spouse's honesty (or dishonesty) during marriage. The court will base the award on Family Code Section 4320, which includes income history during the marriage (who was the higher income earner), duration of the marriage, ability to pay, ability to earn, and so forth. You can research these factors on line. Spousal support, especially in a high conflict and/or emotionally charged matter such as yours appears to be, can be an extremely expensive process, with, often, disappointing results if you do not have realistic legal expectations. If your spouse has no income, the social security benefits he receives may or may not be income available for support (there are a number of factors that impact this). And, if you were the higher income earner during the marriage, he could request support be paid by you to him (request, not that he would succeed).

    I would strongly recommend that you consult a lawyer to directly analyze the specifics of your situation so that you can have a more precise understanding.

    I hope this is helpful to you. Good luck.

    See question 
  • Giving that they have been married for so long, how long will he have to pay alimony to her & is she entitled to his pension?

    My brother has been married for almost 20 years, they have three minor children 11,14 and 16. He works in correction and has for the past 15 years, however, during the marriage she has never worked.He has wanted to divorce her for a very long time...

    Diana’s Answer

    Generally speaking, from the date of marriage to the "date of separation" (legal term), 50% every dollar either or both spouses earn belongs to the other spouse, whether they are earning income, the stay-at-home-parent, or a beach bum. I can, literally, spend my days, months, years of marriage, lying on the sofa eating bonbons, watching soaps, and every dollar my spouse earns, half of it belongs to me, under California law. That means that if my spouse uses his income to contribute to a retirement account in his name only, or earns credits towards a pension during our marriage, he has put in to those funds half of my money.

    During this time, we have also established an income history and a marital standard of living. In a long term marriage (10+ years), decisions are made that can impact a spouse's ability to be self-supporting: sometimes it's one spouse works and advances his/her career, while the other is the stay at home parent, sacrificing a career. Sometimes, it's not a mutual decision, but the spouses go with it. Whatever the reason, a history and a pattern and a reliance has been established under California law. It is unrealistic to expect that the spouse who sacrificed career and/or work history will suddenly be able to move on without any financial support from the other spouse after a divorce. So, to balance this, the court can, and likely will, order spousal support. The critical things to know about spousal support are:

    - Based on the marital standard of living - this is a maximum.
    - The legislative intent is that BOTH spouses work towards becoming self-supporting - if you can work, you should; Judges get very angry, sometimes, when an able-bodied spouse refuses to follow the judge's orders and make an effort to seek employment. In such instances, I have seen judges order a reduction and even a $0 support order, even in long term marriages.
    - Temporary support (that ordered based on a computer formula) is only during the divorce process and tends to be higher than the "permanent". The "permanent" is just the word used for the order at the end of the divorce case, and it tends to be less than the temporary.
    - Duration of payments in a long term marriage are typically until the receiving spouse remarries, either spouse dies, retirement, or further order of the court. It is always modifiable, unless the spouses agree to something different.
    - The amount is an issue that can often be unpredictable and over which people will fight tooth and nail. For one party, it's not enough, and for the other, it's too much. The courts are not allowed to use the computer formula. They are required to base the permanent support order on Family Code sec. 4320. These include health, age, education, ability to earn, ability to pay, how assets and debts are divided, and, my favorite, whatever the judge deems just and equitable. This last factor is what creates the unpredictable nature of spousal support.

    Going back to "date of separation", this is the cut-off date for the community asset and debts. After this date, each party's income is 100% their own. So if one spouse continues to pay community debts, to the exclusion of the other (let's say the mortgage), the other spouse, from the date of separation on, owes the paying spouse half of the payments back. If one spouse is using a community asset (let's say the house), from date of separation on, to the exclusion of the other (doesn't matter why), the spouse using the asset owes the "out spouse" half the fair market rental value of the property. If there would have been a support order (had to have been formally requested), the court can offset support by the amounts owed.

    It can be very complicated. Where the spouses have more control and more of a voice is in an out-of-court resolution process. I have seen people exchange assets for support (or reduce the support amount), I've seen support buyouts and offsets. There are more options. But the court is limited by the law.

    See question 
  • How does he file for a divorcehere and serve her. She wont contest and they have a mutual support agreement

    My boyfriend and I want to get married, but he is married in mexico. He has been seperated for 16 years and has a 15 year old son. He has been in cal for 14 years. How does he file for a divorce here? How do we serve her in Mexico.

    Diana’s Answer

    If she is in agreement, you can serve her by mail. You can also complete the agreements and other necessary forms so it is all completed without delay. Many lawyers do this work on a limited scope agreement, meaning you do not hire the lawyer for all purposes but, rather, just to prepare the forms, for example. it's worth the investment, and some do it on a flat fee.

    I hope this is helpful to you both. Good luck.

    See question 
  • Am I entitled for a share in appreciation of home value?

    We have been married for 1.5 years.. The home we stay in was bought by her prior to marriage and title remains in her name. The mortgage payment goes from our joint account for almost a year where we put 50-50% money (for first 6 months I did not...

    Diana’s Answer

    Separate property (property owned prior to marriage) remains separate property unless there is a "transmutation" (usually done by changing title, as it relates to real property). In your situation, that didn't happen. So the property stayed separate. However, if you contributed towards the payment of that property, resulting in an increase in it's value (you payed down principle on the loan), you would be entitled to a reimbursement, based on a court calculation (Moore Marsden). In addition, if your spouse used her income (earned during marriage), again towards the principle, the court can order half of those sums back to you as well. The reason for this is that when you marry, half of your income, earned from date of marriage to date of separation, belongs to your spouse, and vice versa. The fact that you both contributed equally may muddy these waters. And, given the short duration of your marriage, it's unlikely that there would have been much paid towards the principle, but you would have to have a lawyer review the financial documents.

    This can be complicated, and, in the end, you may end up spending more than you would get in return. But it may be worth investing one to three hours to have a lawyer review this directly.

    I hope this is helpful to you.

    See question 
  • How much will it cost me to divorce my husband that i no longer have contact at all with? What do i need to do?

    I want to get a divorce but i dont know where my husband is. I cant reach him. Weve been married for about 2 1/2 yrs but i dont live with him. What can i do and how much will it cost?

    Diana’s Answer

    Your situation needs to be handled carefully to make sure you comply with all of the legal requirements - it can be very frustrating when you think have done everything correctly, only to find out from the court that you didn't, and now have to start all over. The work that needs to be done before you can request permission to serve by publication can be burdensome, and once you get that permission from the court, you will have to pay for the publication as well. It can be done, but it will take time and money. It will take longer if not done correctly from the beginning.

    I know this is not the response you would like, but it is the reality of your situation.

    Good luck.

    See question 
  • Are these states my best bet for divorce?

    i think in texas ,arizona and vermont, va in service disability is not considered in income for alimony payments is this true? i only have social security and 90 % disabled va disability compensation no family violence i...

    Diana’s Answer

    You don't really get to forum shop based on which laws are more favorable for your situation. Each state has it's own jurisdiction requirements for filing for divorce. In California, you must have been a resident of the state for a minimum of 6 months prior to filing, and of the county in which you file for a minimum of 3 months prior to filing. You would have to inquire of each state as to the residency requirements for those states and ask your specific support question of the lawyers within that state. If you or your spouse reside in California, and either one meets these requirements, either of you could file in California.

    See question